Feeds:
Posts
Comments

Archive for the ‘Contract, Contracts’ Category

Only in Louisiana.

A lawsuit filed in 23rd Judicial District Court in Ascension Parish challenging the legality of the proposed approval of $450 million in industrial tax exemptions raises two immediate questions:

  • What are Projects Magnolia, Zinnia, Bagel and Sunflower/Sunflower Seed?
  • Why is the Ascension Parish Council being so secretive about the true identities?
  • Why did the Ascension Parish Council’s Finance Committee not follow the law in considering the proposed tax exemptions?
  • Most important of all, what is the Ascension Parish Council trying to hide?

These are all questions to which plaintiffs Dr. Henrynne Louden, George Armstrong and Lana Williams are seeking answers in their petition filed last Friday.

On Sept. 12, the council’s Finance Committee, which in truth is comprised of all 11 council members, met and added to its agenda for the full council meeting of Sept. 21 Item 7, calling for the consideration of “resolutions to award industrial tax exemption at levels recommended by the Ascension Economic Development board for the following projects:

  • Project Magnolia;
  • Project Zinnia;
  • Project Bagel;
  • Project Sunflower/Sunflower Seed.

Altogether, the four projects would cost Ascension Parish $55.6 million—for a grand total of 32 new jobs, or $1.7 million per job.

To see the lawsuit in its entirety, click HERE.

Ascension_code_names.PNG

“The identity of the projects on the agenda for the meeting of the council held on September 21, 2017, are fictitious,” the lawsuit says, adding that neither the plaintiffs “nor any other member of the public could determine, from a review of the consent agenda:

  • The identity of the company (or companies) seeking the benefit of an industrial tax exemption;
  • The amount of the exemption sought for each project;
  • The cost of granting each of the exemptions;
  • Whether any of the projects comply with requirements of the Louisiana State Constitution, or
  • Whether any of the projects comply with requirements of Executive Order Number JBE 2016-73.

“There are two things at issue in this suit,” said a spokesperson for an organization calling itself Together Louisiana: “Whether public subsidies can be approved by a public body without disclosing the identity of the entity receiving the subsidies, and whether reasonably specific public notices must be provided regarding approval of such subsidies.”

Article 7, Section 21(F) of the Louisiana State Constitution of 1974 spells out the requirements for approval of the ad valorem tax exemptions for new manufacturing facilities.

“After being elected,” the lawsuit says, Gov. John Bel Edwards determined that the Board of Commerce and Industry “…had approved industrial tax exemptions contracts ultimately resulting in an average of $1.4 billion in foregone ad valorem tax revenue each year for the next five years for parishes, municipalities, school districts and other political subdivisions of the state that directly provide law enforcement, water and sewage, infrastructure, and educational opportunities to Louisiana citizens.”

On Oct. 21, 2016, Gov. Edwards issued Executive Order Number JBE 2016-73 entitled “Amended and Restated Conditions for Participation in the Industrial Tax Exemption.”

The executive order requires that the governor and Board of Commerce and Industry be provided with a resolution adopted by, among others, “the relevant governing parish council, signifying, “whether it is in favor of the project,” the lawsuit says.

The executive order further says that contracts for industrial tax exemptions which do not include a resolution by the relevant local governing authority “will not be approved by the governor.”

The agenda for the Sept. 12 Finance Committee meeting, the plaintiffs say in their petition, “failed to indicate that (it) would be considering whether or not to approve a resolution signifying that the council was in favor of one or more industrial tax exemption.” Despite failing to include the item on its agenda, the Finance Committee did, in fact, recommend approval by the council of such a resolution, placing the committee, the lawsuit says, in violation of the state’s open meeting laws.

“Not only are meetings of the public bodies to be open,” the lawsuit says, (but) “citizens have the right to know—in advance—the subject matter upon which governing bodies will deliberate and vote.”

The state’s open meeting laws require posting written notices of the agenda of all meetings “no later than 24 hours, exclusive of Saturdays, Sundays, and legal holidays, before the meeting” and “shall include the agenda, date, time, and place of the meeting.”

The committee’s violation of the open meeting laws, the plaintiff say, deprived the public of the right to:

  • Know what was being considered by the Finance Committee;
  • Directly participate in the deliberations of the Finance Committee;
  • Protect themselves from secret decisions made without any opportunity for public input.

The lawsuit is asking the court to declare actions of both the Finance Committee and the full council void as provided by law.

The plaintiffs and their attorneys, Brian Blackwell and Charles Patin of Baton Rouge are, in all probability, correct in their interpretation of the state’s open meeting laws (Article XIL, Section 3 of the 1974 Louisiana State Constitution and Louisiana Revised Statute 42:19).

But this is Louisiana and it has been the experience of LouisianaVoice and other members of the media that the law is whatever some judge says it is. Judges apparently have wide discretion in concocting their own interpretations of the law to accommodate whomever the judges wish to accommodate—usually campaign donors.

The three plaintiffs in this case have the full moral support of LouisianaVoice but the reality is there is usually negligible correlation between law and justice once you walk through those courtroom doors.

Advertisements

Read Full Post »

As recently as 2015, Lockheed Martin LOCKHEED MARTIN, with $36.2 billion in contracts, was the single largest Pentagon contractor, more than double Boeing’s $16.6 billion.

There is little reason to believe that those numbers have changed significantly in the last two years.

With three large cost-plus contracts for testing and maintenance support services, Lockheed Martin has a commanding presence at NASA’s primary rocket propulsion facility at the STENNIS Space Center just over the Louisiana state line in Mississippi.

But as history has shown (remember the $600 toilet seats and the $100 screwdrivers?), the potential for ABUSE with such large contracts that seem to carry little apparent oversight, is overwhelming.

Now two Louisiana residents, one former Lockheed employee and the other a former contract employee for Lockheed, are bringing suit in U.S. District Court in the Eastern District of Louisiana in New Orleans under the federal FALSE CLAIMS ACT.

The two, Mark Javery of St. Tammany Parish and Brian DeJan of New Orleans, claim that they were first given no duties and then fired from their jobs after reporting cost overruns and safety and performance issues.

They are represented by Baton Rouge attorney J. Arthur Smith, III.

DeJan was a project engineer for a Lockheed subcontractor, Camgian Microsystems, Inc. He was supervised by Javery, who was an infrastructure operations manager for Lockheed. As part of their respective jobs, they were to monitor preventive maintenance metrics and to report the results of their findings to NASA employee Reginald “Chip” Ellis, Deputy Program Inspector for the Rocket Propulsion Test Program.

In April 2014, DeJan and Javery began investigating “unexplained cost overruns and performance issues with the maintenance of test facilities.”

Their lawsuit says that during their investigation, they received “credible information that maintenance and charges related to NASA’s agreement with Space Exploitation Technology were being charged “inappropriately” to the Test Operations Contract for which Lockheed was the prime contractor.

They reported their findings on April 22, 2014, to Ellis and to their immediate supervisor, Terrance Burrell.

On April 28, Lockheed Martin suspended Javery during “pendency of an informal investigation and disciplinary process,” and on April 29, Lockheed requested that Camgian remove DeJan from the Test Operations Contract “until further notice,” which Camgian did.

On May 20, Lockheed terminated Javery’s employment and requested that Camgian “remove DeJan from the Lockheed Martin contract.” Camgian terminated DeJan on May 21.

The two claim that their actions were protected under the False Claims Act, enacted in 1863 over concerns that suppliers contracted to supply the Union Army with goods were defrauding the Army.

Javery and DeJan are seeking reinstatement, double their back pay, compensation for any special damages and attorney and legal fees.

Lockheed, like most defense contractors, has a history of overcharges and the occasional penalty. In 2011, it settled a whistleblower LAWSUIT for $2 million in another False Claims Act at the Stennis Space Center.

“Companies that do business with the federal government and get paid by the taxpayers must act fairly and comply with the law,” said Tony West, assistant attorney general for the Justice Department’s Civil Division. “Whistleblowers have helped us to enforce the law by bringing to light schemes that misuse taxpayer dollars and abuse the public trust by undermining the integrity of the procurement process.”

West, of course, was describing life in a perfect world. In the real world, things are quite different and the “schemes that misuse taxpayer dollars and abuse the public trust” are rarely reported and even more infrequently punished.

The occasional fine is a mere fraction of illicit profits gained through overbilling and outright fraud.

That’s because no one seems to be watching and because members of Congress passionately protect the contractors domiciled in their districts.

And that’s why contractors continue to belly up to the public trough.

Read Full Post »

More details from the Jeff Mercer case against the Louisiana Department of Transportation and Development (DOTD) keep surfacing and each new revelation casts a long shadow over DOTD and the state judiciary, particularly in the second Circuit Court of Appeal.

And if that isn’t enough to shake your faith in the judicial system, the reputation of the 18th Judicial District across the Mississippi River from Baton Rouge ain’t looking too good, either.

LouisianaVoice has obtained a document addressing Mangham subcontractor Jeff Mercer’s claim that clear shows that DOTD and the Federal Highway Administration (FHWA) were in agreement on the AMOUNT DOTD ADMITTED OWING MERCER. In an email dated June 6, 2016, DOTD Executive Counsel Cheryl Duvieilh wrote to FHWA official Joshua Cunningham that Mercer was entitled to payment of $363,075, plus judicial interest of $42,358.91 for a total of $405,433.91.

That money, a fraction of the $10 million Mercer said he was owed but which was being withheld after he refused demands from DOTD supervisors to kick back money and equipment to him in exchange for approval of his work, still has not been paid.

Instead, DOTD told Mercer and his attorney the money would held “hostage” until everything was settled, knowing that even a partial settlement would be an admission that all of Mercer’s claims were valid.

A separate document obtained by LouisianaVoice also shows that prime contractor AUSTIN BRIDGE, through whom Mercer’s company was contracted as a subcontractor, was owed $9,081,695.30 to resolve its contract claims in a pending mediation session.

That document, from John M. Dubreuil and Ryan M. Bourgeois and addressed to Richard Savoie, was dated Oct. 2, 2013, said, “Accept this memorandum as a final request to participate in the scheduled mediation with a maximum settlement authority of $9.1 million. It was signed off on by Savoie and three FHWA officials.

While other documents were requested under the Freedom of Information Act (FOIA) and the state’s Public Records statutes, as well as through official discovery in part of the civil process of litigation over the payments, those were the only two documents DOTD provided. Agency attorneys refused to release all other documents relative to claims by Mercer or Austin Bridge.

Because settlement negotiations are not admitted into testimony, the jury hearing Mercer’s lawsuit against DOTD was never apprised of DOTD’s in-house admission that it owed the money to Mercer. Despite not hearing this information, the 12-person jury unanimously awarded Mercer $20 million after hearing the sordid details of attempts of extortion, bribery and strong-arming.

DOTD appealed and Second Circuit Chief Judge Henry N. Brown, whose father was a DOTD civil engineer for 44 years, assigned the case to himself and wrote the opinion overturning the jury’s award.

It would be one thing if this was an isolated incident. Sadly, though, it is not. While the vast majority of judges carry on their duties quietly and without fanfare in their genuine efforts to dispense justice equitably, there are always those who will attempt to exploit their positions. They will either attempt financial gain or exercise power and to gain prestige from the bench—or all three.

  • New Orleans Federal Judge G. Thomas Porteous was removed from the bench in 2010 by the U.S. Senate after being IMPEACHED.
  • Judges in the 4th Judicial District (Ouachita and Morehouse parishes) filed SUIT against Ouachita Citizen Publisher Sam Hanna, Jr., two years ago in an effort to thwart efforts by the newspaper to obtain public records.
  • Judges Ronald Bodenheimer and Alan Green went to jail and a third judge, Joan Benge, was kicked out of office by the Louisiana Supreme Court. All three were caught up in the FBI’s nine-year investigation dubbed OPERATION WRINKLED ROBE.
  • Judge Wayne Cresap, 34th JDC Judge for St. Bernard Parish, was sentenced to five years in prison in 2010 for accepting $70,000 in bribes.

The latest is one Robin Free, formerly of the 18th JDC, which includes the parishes of Iberville, West Baton Rouge, and Pointe Coupee.

Slated to return to the bench after a one-year suspension by the State Supreme Court, Free suddenly RESIGNED on Friday (June 23) following reports he had been HARASSING West Baton Rouge Parish Sheriff’s deputies over their issuing speeding tickets on U.S. 190.

He was near the end of his year’s suspension for failing to maintain the integrity of his position and for exhibiting behavior described as “injudicious, lacking judicial temperament and giving an appearance of impropriety.”

One of the reasons for his suspension was his acceptance of a FREE TRIP from an attorney who had won a big judgment in Free’s court.

Click HERE for the full text of the June 29, 2016, Louisiana Supreme Court’s Judiciary Commission report.

Even during his suspension (without pay), he still managed to stay on the public payroll when Iberville Parish President J. Mitchell Ourso HIRED him as supervisor of Iberville Parish’s Department of General Services (whatever that is) at $75,000 per year. Ourso said Free was hired to update the parish’s personnel manual and to assist in drafting the parish’s 2017 fiscal year budget.

Free has clearly demonstrated that he is unfit to be entrusted with handing decisions that impact the lives of others. Perhaps he is qualified to work in an administrative position, but we doubt it. He exhibits far too much narcissism to be placed in any position of trust.

He is merely a symptom of the bigger problem of the public’s becoming increasingly wary and distrustful of the judicial system. The Billy Broussard and Jeff Mercer cases only serve to underscore the validity of that distrust.

Read Full Post »

Were political considerations behind separate decisions by a state district judge to prohibit a contractor from seeking public records or a Second Circuit Court of Appeal judge to overturn a $20 million judgment against the Louisiana Department of Transportation and Development (DOTD)?

While definitive answers are difficult, there does seem to be sufficient reason to suspect that the lines between the judicial and administrative branches of government may have been blurred by the Second Circuit Chief Judge’s decision to negate the award to a contractor who a 12-person jury unanimously decided had been put out of business because he refused to acquiesce to attempts of bribery, extortion and conspiracy.

Judge Henry N. Brown, by assigning the case to himself and then writing the decision despite the fact his father had been a DOTD civil engineer for more than 40 years, may have placed federal funding for Louisiana highway projects in jeopardy.

And the RULING by 14th Judicial District Court Judge David A. Ritchie prohibiting Breaux Bridge contractor Billy Broussard from making legitimate public records requests of the Calcasieu Parish Police Jury or of the Calcasieu Parish Gravity Drainage District 8 would appear to be patently unconstitutional based solely on the state statute that gives any citizen of Louisiana the unfettered right to make public records requests of any public agency.

In Broussard’s case, he was contracted by Gravity Drainage District 8 to clean debris from Indian Bayou following Hurricane Rita in 2005. Work done by his company was to be paid by FEMA. Gravity Drainage District 8 instructed Broussard to also remove pre-storm debris from the bottom of the bayou, telling him that FEMA would pay for all his work.

FEMA, however, refused to pay for the pre-storm cleanup and Gravity Drainage District 8 subsequently refused to pony up. Broussard, represented then by attorney Jeff Landry, since elected Attorney General, filed a lien against the drainage district.

When Broussard lost his case before Judge Ritchie, he continued to pursue his claim and submitted this PUBLIC RECORDS REQUEST to the drainage district and to the police jury. Those efforts resulted in a heavy-handed LETTER from attorney Russell J. Stutes, Jr., which threatened Broussard with “jail time” if he persisted in his “harassment” of Calcasieu public officials.

And the injunction barring Broussard from future records requests, instead of being filed as a separate court document, was sought under the original lawsuit by Broussard, which presumably, if Stutes’s own letter is to be believed, was a final and thus, closed case. That tactic assured that Broussard would be brought before the original judge, i.e. Ritchie, who was already predisposed to rule against Broussard, no matter how valid a claim he had.

That was such a blatant maneuver that it left no lingering doubts that the cards were stacked against Broussard from the get-go. Everything was tied up in a neat little package, with a pretty bow attached. And Broussard was left holding a $2 million bag—and assessed court costs of $60,000 to boot.

In Jeff Mercer’s case, federal STATUTE U.S. Title 49 specifically prohibits discrimination against Disadvantaged Business Enterprises (DBE). It further requires that all states receiving federal funding for transportation projects must have a DBE program.

Mercer, a Mangham contractor, sued DOTD after claiming that DOTD withheld more than $11 million owed him after he rebuffed shakedown efforts from a DOTD inspector who demanded that Mercer “put some green” in his hand and that he could “make things difficult” for him.

Mercer suffers from epilepsy, which qualified him for protection from discrimination under Title 49.

His attorney, David Doughty of Rayville, feels that Brown should never have assigned the case to himself, nor should he have been the one to write the opinion. Needless to say, Doughty does not agree with the decision. He has filed an APPLICATION FOR REHEARING in the hope of having Brown removed from the case.

LouisianaVoice conducted a search this LIST OF CASES REVERSED BY 2ND CIRCUIT and the Mercer case was the only one of 57 reversals decided by a jury.

So it all boils down to a simple equation: how much justice can you afford?

When an average citizen like Broussard or Mercer goes up against the system, things can be overwhelming and they can get that way in a hurry.

Because the government, be it DOTD, represented by the Louisiana Attorney General’s office, or a local gravity drainage district, represented by the district attorney, has a decided advantage in terms of manpower and financial resources, giving the individual little realistic chance of prevailing.

In Broussard’s case, he did not. Mercer, at least, won at the trial court level, but the process can wear anyone down and that’s just what the state relied upon when it appealed.

With virtually unlimited resources (I worked for the Office of Risk Management for 20 years and I saw how an original $10,000 defense contract can balloon to $100,000 or more with few questions asked), the government can simply hunker down for the long haul while starving out the plaintiff with delays, interrogatories, requests for production, expert costs, court reporter costs, filing fees and attorney fees. Keeping the meter running on costs is the most effective defense going.

The same applies, of course, to attempts to fight large corporations in court. Huge legal staffs with virtually unlimited budgets and campaign contributions to judges at the right levels all too often make the pursuit of justice a futile chase.

And when you move from the civil to the criminal courts where low income defendants are represented by underfunded indigent defender boards, the contrast is even more profound—and tragic, hence a big reason for Louisiana’s high incarceration rate.

The idea of equal treatment in the eyes of the law is a myth and for those seeking remedies to wrongdoing before an impartial court, it is often a cruel joke.

Read Full Post »

Do you happen to remember the LouisianaVoice STORY of April 2014 in which Jeff Mercer, owner of a defunct Mangham construction company, claimed in a lawsuit that the state owed him more than $11 million that was withheld after he resisted shakedown efforts from a Department of Transportation and Development (DOTD) inspector who demanded that Mercer “put some green” in his hand and that he could “make things difficult for Mercer?”

Or do you happen to remember the follow up LouisianaVoice STORY of December 2015 in which the inspector, Willis Jenkins, admitted during the trial that he did indeed say he “wanted green,” but that he was only joking. Or that because money Mercer said he was entitled to was withheld, he eventually had to shutter his construction company?

Apparently Mercer possessed sufficient proof that a 12-person jury, after a grueling, 30-day trial, unanimously awarded him $20 million. Not only did the jury hold DOTD liable for damages, but it also held four individual DOTD employees—Willis Jenkins, Michael Murphy, Barry Lacy, and John Eason—personally liable.

Employed by the jury in arriving at its verdict was such benign nomenclature as “collusion,” “bribery,” “extortion,” “conspiracy,” and “corruption.”

But that wasn’t good enough for the Chief Judge of the Second Circuit Court of Appeal, a judge with a spotty legal record of his own—and a judge with ties sufficiently close to DOTD that he probably should never have touched this case in the first place—not even with the proverbial 10-foot pole.

Mercer’s award was not just reduced, but obliterated, when it was overturned in its entirety, showing again how subtle nuances of the legal system allow for gross injustice to be perpetrated against those lacking the right connections or campaign cash.

There was a similar case in Calcasieu Parish involving contractor Billy Broussard, a gravity drainage district, and a contract to clean hurricane debris out of a local bayou. Broussard was instructed to clean out pre-storm debris, to be paid by FEMA. FEMA refused to pay for the unauthorized cleanup, and the gravity drainage district has refused to honor its obligations, costing Broussard millions of dollars.

And the legal system has been irresponsible in protecting the rights of first Broussard and now Mercer, leaving one to wonder with some justification: “What happens when I need the protection of the courts?”

It’s interesting that in our society, we tend to put a lot of faith in robes. But a black robe and a gavel do not endow a person with wisdom, or even knowledge. They are merely symbolic. Yet, when we walk into a courtroom, we are expected—required—to be reverent, attentive, and respectful and to never, under any circumstances, question the authority of the man or woman on the raised bench clad in that black robe and holding that gavel.

Of course there must be decorum in an environment of dispute resolution. Otherwise, events quickly descend into chaos. But that certainly does not mean that the presiding officer of the court is infallible. Far from it.

And that seems to be the one fact that some judges tend to forget—all too often.

Judge Henry N. Brown, as Chief Judge of the Second Circuit, has the responsibility of assigning cases. In Mercer’s case, he somewhat incredibly chose to assign it to himself—and wrote the decision.

The problem with that? Oh, not much…except that Brown’s father was a civil engineer for DOTD for 44 years, thus creating what could be perceived as an instant conflict of interest. Nor, apparently, did he ever once see the need to inform Mercer or his attorney—or anyone else, for that matter—of this inconvenient little fact.

Mercer’s attorney, David Doughty of Rayville, is understandably upset. “Mercer has a constitutional right to a fair trial before an impartial judge,” he says in his MEMORANDUM in Support of Application for Rehearing and his Motion to Recuse and Vacate the Panel’s Opinion.

“Only after the June 7 decision (by the Second Circuit) did plaintiff (Mercer)/appellee learn that Chief Judge Henry Brown, Jr. failed to disclose the critical fact that his father, Henry N. Brown, Sr., had been a civil engineer for the State of Louisiana in the Shreveport area for 44 years,” the memorandum says.

Doughty cited a case in which a West Virginia judge refused to recuse himself and the state Supreme Court subsequently found “that the risk of perceived bias was so great that due process requires recusal.”

“Judge Brown’s failure to recuse himself from the case or even disclose this huge potential bias undermines the very fabric of our people’s faith in the judicial integrity of the Second Circuit Court of Appeal,” the memorandum says. “This failure erodes public confidence in the integrity or capacity of this judiciary.”

Doughty wrote that the Second Circuit’s decision should be vacated “especially in the wake of a unanimous 12-person jury verdict finding that the plaintiff had proven governmental corruption and conspiracy.”

Brown won a close race for reelection as district attorney in 1984 over then State Rep. Bruce Bolin of Minden. In that campaign, Bolin accused Brown of having dropped charges against 230 suspects. Some of those charges, Bolin said, included rape, narcotics violations and DWI. Bolin, in what must be considered campaign rhetoric, also said Brown had not adequately prosecuted murder cases.

But Brown was known for his dogged prosecution of murder cases as a district attorney. Sending five defendants to the electric chair, he was featured on CBS’s 60 Minutes and the Fox Channel’s The Reporters. He was called “The Deadliest Prosecutor” by one publication.

At least one of Brown’s high-profile prosecutions, however, was overturned by the Louisiana Supreme Court.

In 1986, he was the district attorney in the prosecution of James M. Monds of Keithville in Caddo Parish. Monds, at the time a surgical technician at Barksdale AFB, was convicted of the murder of a woman who was raped, assaulted, and mutilate in a high school parking lot. Despite his denial that he had ever met the victim and that he had no knowledge of her death, he was convicted. In 1994, the Louisiana Supreme Court ruled that insufficient evidence, most of it of a circumstantial nature, existed to continue to incarcerate Monds. He was subsequently released after serving nearly nine years in prison.

Doughty said it is a “matter of common sense that someone whose family is so deeply connected to the DOTD should not hear the case out of fundamental fairness” and that the decision to do so constituted violations of CANONS 2 and 3 of the Code of Judicial Conduct.

So, bottom line: There is often little correlation between law and justice.

And people like Jeff Mercer and Billy Broussard end up nailed to the wall by a perverted legal system that is grotesquely unfair, to say the least.

Read Full Post »

Older Posts »